Unusual Allies in a Legal Battle Over Texas Drivers’ Gun Rights

[KeithPA]

http://www.nytimes.com/2007/04/05/us...7VfkVxgAZ2eu3w

HOUSTON, April 4 — Keith Patton was driving home one night in February when police officers pulled over his red Ford Explorer for a traffic stop.

Mr. Patton, 51, an oil-field geologist, software tester and martial arts instructor from suburban Katy, told the police about the gun, which he said he had bought hours before from a co-worker for target shooting. Moments later, he was handcuffed and on his way to jail, facing a charge of unlicensed carrying of a weapon.

The arrest might have been routine elsewhere, but this is Texas, where a code rooted in the days of the highwayman recognizes the right of travelers to be armed, and the Legislature has repeatedly endorsed that principle.

Defiant police officers and prosecutors, however, saying they retain law enforcement discretion, have continued arresting and bringing cases against motorists like Mr. Patton found with unlicensed handguns.

The conflict has led to a legal standoff and a new effort by legislators to resolve the issue. It has also inspired an unlikely alliance between the gun lobby, which has long drawn support from the political right, and civil liberties advocates, long identified with the left, in defense of pistol-packing travelers.

In a report issued in February, the Texas affiliate of the National Rifle Association joined the American Civil Liberties Union of Texas and the Texas Criminal Justice Coalition “to spotlight unlawful, unnecessary governmental encroachment on average law-abiding citizens.”

The report, “Above the Law: How Texas prosecutors are placing their own judgment over that of the Legislature and the law of the land,” found that district and county attorneys had instructed police officers to “unnecessarily” interrogate drivers and arrest them or take their weapons, “even if they are legally carrying the gun.”

“It’s all the self-interest of the job,” said Scott Henson, a civil liberties advocate and blogger who wrote the report. Mr. Henson contends that police officers are opposed to citizens’ carrying guns and that prosecutors depend on gun charges to strengthen weak cases and prompt plea bargains.

Like many other states, Texas bans the carrying of concealed handguns without a license. Obtaining a license requires a background check and a gun-safety course. By long-established law, however, Texans can cite “traveling” as a defense to possession of an unlicensed handgun. But while traveling was widely understood to denote a journey of some distance, it was never defined. (Travel on planes and other interstate conveyances banning weapons falls under federal jurisdiction.)

In 1997, the State Legislature tried to clarify the law by removing unlicensed carrying of a weapon as an offense while traveling. But it left unresolved whether traveling required making an overnight stop, crossing county lines or other conditions.

In 2005, lawmakers sought to remove the ambiguity by declaring that anyone in a private vehicle who was not engaged in criminal activity or otherwise barred from possessing a firearm was “presumed to be traveling,” and thus exempt from restrictions on concealed handguns.

Terry Keel, a former member of the Texas House of Representatives who sponsored the bill, explained its intent in a statement entered into the record: “In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle.”

But the measure hardly ended the controversy.

Almost as soon as it became law in September 2005, the Texas District and County Attorneys Association signaled its displeasure by advising members that the act did not rule out arrests of otherwise law-abiding drivers carrying weapons. The association said it was up to the courts to determine whether a person was, in fact, traveling. “Therefore,” it declared, “officers are still acting within their lawful discretion if they arrest a person who might qualify for the traveling defense or the new traveling presumption.”

Or, as Charles A. Rosenthal Jr., the district attorney of Harris County, which includes Houston, argued, “The presumption of innocence does not make the person innocent.”

Interesting as I've always understood no license is needed in a vehicle in Texas. (Usual police bash**) Sad when police don't honor the law, just like our fine PSP.

** Denotes sarcasm